Between
Her Majesty the Queen, appellant, and
Major Jay
Fox, respondent

[2003] S.J. No. 556
2003 SKCA 79
Docket: 585

Saskatchewan Court of
Appeal
Vancise, Sherstobitoff and Jackson JJ.A.

Heard: June 4, 2003.
Written reasons: September 2, 2003.
(93 paras.)

On appeal from Q.B.A. No. 004 of 2002 J.C.B.

Counsel:

Anthony B. Gerein, for the appellant.
The respondent appeared on his own behalf.

The judgment of the Court was delivered by

JACKSON J.A.:

TABLE OF CONTENTS

I.

OVERVIEW

Para. 1

II.

SUMMARY OF THE EVIDENCE

Para. 5

III.

TRIAL JUDGE'S DECISION

Para. 10

IV. DECISION OF THE SUMMARY

CONVICTION APPEAL COURT

Para. 12

V. CAN LOW ALCOHOL CONSUMPTION CONSTITUTE

EVIDENCE TO THE CONTRARY CAPABLE OF REBUTTING

THE PRESUMPTION OF ACCURACY?

Para. 15

A.

The presumptions created by

section 258

Para. 15

B.

Saskatchewan jurisprudence

Para. 25

C.

Supreme Court jurisprudence:

Moreau, Crosthwait and St. Pierre

Para. 35

D.

Other appellate authority

Para. 42

E.

Summary of analysis

Para. 51

VI. CAN A COURT CONSIDER THE ROADSIDE

SCREENING TEST WHEN ASSESSING THE WHOLE

OF THE EVIDENCE?

Para. 53

A.

Question of law raised

Para. 53

B.

If the presumption of accuracy is

rebutted, can the Court still consider

the certificate as some evidence?

Para. 59

C.

Use of the roadside screening test

result

Para. 67

D.

Reliability of the roadside test

Para. 83

E.

When is the evidence of the roadside

test to be considered?

Para. 87

VII.

CONCLUSION

Para. 93

I. OVERVIEW

¶ 1
With respect to a charge of driving while over
.08, Mr. Major Jay Fox gave two breath samples showing a blood
alcohol content of .13. At trial, he adduced evidence to the
effect that the amount of alcohol he had consumed should not
have resulted in a reading over .06 let alone .13. While the
trial judge found this evidence rebutted the presumption of
the Intoxilyzer's accuracy, he ultimately rejected it and
convicted Mr. Fox on the basis of the evidence as a whole,
including his "fail" reading produced by the roadside
screening device. Mr. Fox appealed his conviction to the
summary conviction appeal court.

¶ 2
The summary conviction appeal court judge allowed
Mr. Fox's appeal and ordered a new trial on the basis that the
trial judge erred when he considered the "fail" reading on the
roadside screening device.

¶ 3
The Crown applies for leave to appeal. These are
the questions of law: (i) whether evidence of low alcohol
consumption, without direct evidence of breathalyzer
malfunction, operator error or contamination, can be evidence
to the contrary capable of rebutting the presumption of
accuracy created by subsection 25(1) of the Interpretation Act
[See Note 1 below] as applied to clause 258(1)(g) of the
Criminal Code; and (ii) if the answer is "yes," did the
summary conviction appeal court judge err in concluding that
the trial judge erred when he referred to the "fail" on the
roadside screening device as a means of testing Mr. Fox's
credibility and thereby confirming the accuracy of the
certificate?

Note 1: R.S.C. 1985, c. I-21.

¶ 4
I answer "yes" to the first question, but
nonetheless would allow the appeal. While it is possible for
evidence of low alcohol consumption to overcome the
presumption of accuracy created by subsection 25(1) of the
Interpretation Act as applied to clause 258(1)(g) of the
Criminal Code, the trial judge did not err in rejecting that
evidence in the face of the certificate and the whole of the
evidence, including the roadside screening result. This holds
open the possibility that an accused can bring forward
evidence that he or she did not drink or drank so little that
there must be an inaccuracy in the machine, but it also
permits the trier of fact to weigh all of the evidence to
decide the guilt or innocence of the accused.

II. SUMMARY OF THE EVIDENCE

¶ 5
Cst. Platford stopped Mr. Fox on June 11, 2000
because there were no licence plates on his truck. Mr. Fox
produced a temporary permit, but in the course of doing so,
Cst. Platford noted an odour of liquor on Mr. Fox's breath.

¶ 6
Mr. Fox provided an approved screening device
sample at 3:32 a.m. The approved screening device registered a
"fail." Cst. Platford arrested him and demanded that he
provide a sample of his breath. He observed no other indicia
of alcohol consumption. He testified that Mr. Fox stopped his
vehicle responsibly and safely on the busy roadway. Mr. Fox
was polite and co-operative throughout.

¶ 7
Mr. Fox testified that he had consumed a maximum
of six 355 millilitre cans of beer with an alcohol content of
5% between no earlier than 10:30 p.m. on June 10th and no
later than 1:30 a.m. on June 11th. At 4:08 a.m., Mr. Fox
provided a breath sample, showing 130 milligrams of alcohol in
100 millilitres of blood, into an "approved instrument" within
the meaning of subsection 254(1) of the Criminal Code, i.e.,
an Intoxilyzer 5000C. His second test, at 4:30 a.m., yielded
the same result.

¶ 8
Mr. Fox consulted Mr. Bruce Miller. Mr. Miller is
"an expert in the absorption and elimination of alcohol in the
human body" [See Note 2 below] and "in the operation and
functioning of the Intoxilyzer 5000C." [See Note 3 below] Mr.
Miller conducted lab tests in March 2001 which led him to
conclude that Mr. Fox, who weighed 230 pounds at the time,
absorbs alcohol at a rate of 12 milligrams per ounce consumed
and eliminates alcohol at 13 milligrams per hour. Mr. Miller
was of the opinion that the readings of 130 milligrams were
"totally inconsistent" with Mr. Fox's stated drinking pattern,
the amount consumed and the rate at which Mr. Fox absorbs and
eliminates alcohol. [See Note 4 below] Mr. Miller concluded
that Mr. Fox's blood alcohol level at the time of driving
would have been about .60 [See Note 5 below] which means that,
one-half hour later at the time of the test, his blood alcohol
level would have been about .53. Without saying that the
Intoxilyzer malfunctioned, because there was no direct
evidence of that, Mr. Miller testified that no scientific
instrument is infallible. [See Note 6 below]

Note 2:
2.

Transcript of trial proceedings at p. 62, lines 1 &

Note 3: Ibid. at p. 65, lines 12 & 13.

Note 4: Ibid. at p. 70, lines 13 to 15.

Note 5: Ibid. at p. 67, lines 24-25.

Note 6: Ibid. at p. 82, lines 20-21.

¶ 9
While Mr. Fox was not represented before us, he
was represented at trial and on his first appeal.

III. TRIAL JUDGE'S DECISION

¶ 10
The trial judge found that Mr. Fox was
challenging the presumption of accuracy. Following the
analysis set out in R. v. Gibson, [See Note 7 below] he
concluded that Mr. Fox's and Mr. Miller's testimony met the
first test, i.e., this constituted some evidence legally
capable of being evidence to the contrary. The trial judge
wrote:

Note 7: (1992), 72 C.C.C. (3d) 28 (Sask. C.A.).

The first stage is to see if there is some evidence which
is legally capable of being evidence to the contrary (For
example, evidence attacking the scheme of Parliament in
designating qualified technicians or approving
instruments would fail this test) At this stage the court
is looking at the probative value of the testimony not
its persuasive value. Put another way the testimony does
not have to be accepted as true, but only has to avoid
rejection.

In my view the testimony of the accused in this case meets
this first test. [See Note 8 below]

Note 8: R. v. Fox 2002 SKPC 15 (Prov. Ct.).

Thus, he answered the Crown's first question raised by this
appeal affirmatively.

¶ 11
When he moved to the second stage, which is to
weigh the whole of the evidence, he wrote:

The second stage is to weigh the evidence of the accused
and any other evidence that points to rebuttal against
other evidence pointing to acceptance. This is the test
described as weighing the whole of the evidence. It is
now settled law that in performing this test the court
can consider the readings obtained on the approved
instrument R. v. Kaminski (1992), 100 Sask.R. 192 (Sask
C.A.) R. v. Martin (as of yet, unreported decision of
Deshaye J. Sask Prov. Ct. Jan 2002).

In this case there is no evidence of inaccuracy in the
intoxilyzer or in its manner of operation on the date in
question. As an approved instrument its results have more
value as persuasive evidence than results from an
ordinary instrument. As well the accused blew a fail on
an Alcotest 7410 GLC moments after he was stopped by
officer Platford. This is again a testing device approved
by Parliament. Officer Platford testified that this
instrument records a fail only at blood alcohol levels of
100 mg percent or more. This is the evidence pointing to
acceptance.

The accused did not demonstrate any of the usual indicia
of impairment. He was not charged with impaired driving.
His actual driving as observed by officer Platford was
unremarkable. The accused stood up well in cross
examination. There was nothing in his demeanour or
background that would raise any doubt about his veracity.

His story, standing alone, was quite plausible. He was
unable to bring other witnesses to corroborate his
consumption, but nothing turns on this circumstance. It
merely means there is nothing in the case to support what
the accused says is the truth.

If the accused's account of his drinking in this case is
believed the end result will be acquittal. This is so
regardless of the probative value of any other Crown
evidence.

Accepting the accused's testimony as accurate would
necessarily result in a finding of a considerable
inaccuracy in this approved instrument or its manner of
operation on June 11th 2000. The attack on this approved
instrument is not a direct attack, it is an indirect
attack on the accuracy of this instrument. The Supreme
Court spoke of Parliament's policy reasons for using such
instruments in their scheme in R. v. Moreau, [1979] 1
S.C.R. 261

Yet, one of the reasons if not the only reason why
Parliament prescribed the use of approved instruments
must have been that it wanted its precise prohibition to
be exactly enforceable. This intent would be frustrated
if approved instruments were treated as ordinary
instruments.

An accused is not left at the mercy of the qualified
technician and the certificate of analysis. An accused
has the right to disclosure of the maintenance and
calibration records of the instrument. The accused can
also request leave to cross-examine the qualified
technician. These are methods by which the accused can
test the accuracy of the instrument, together with
whatever other evidence is available.

To find a considerable inaccuracy in this instrument on
June 11th, 2000 on the facts of this case would amount to
treating this instrument as an ordinary instrument. When
I consider all of the evidence of this case I do not
believe that the accused is giving an accurate account of
his drinking during the night in question. I cannot
accept his testimony as reasonably being true. [See Note
9 below] [emphasis in the original].

Note 9: Ibid.

Mr. Fox appealed his conviction to the Court of Queen's Bench.

IV. DECISION OF THE SUMMARY CONVICTION APPEAL COURT

¶ 12
The summary conviction appeal court judge found
that the trial judge erred in ruling that the roadside
screening result could be used to discredit the accused's
testimony. She relied on R. v. Bernshaw [See Note 10 below]
and R. v. Lambert. [See Note 11 below]

¶ 13
She went on to consider the first question of law
raised by the Crown before this Court. She wrote:

[6] While it is unnecessary for me to address the other
grounds of appeal, it is important to deal with an issue
raised by the Crown as to the presumption of accuracy as
provided by s. 258(1)(g) of the Criminal Code and s. 25
of the Interpretation Act, R.S.C. 1985, c. I-21. It is
Crown's position that to raise a reasonable doubt as to
the accuracy of the breathalyzer instrument, something
more than the uncorroborated evidence of the accused that
he drank less alcohol than the reading of the instrument
indicates is required in law. This matter was thoroughly
argued by the Crown before Meekma P.C.J., in R. v.
Simonson, [2001] S.J. No. 570 (Prov. Ct.). In a thorough
and well-reasoned judgment, Meekma P.C.J., concluded that
the state of the law is that the Crown cannot rely on the
presumption of accuracy if there is evidence to the
contrary before the court which is believed. The
presumption is lost. But the court is entitled to
consider the results of the Certificate of Analyses when
weighing all the evidence.

[7] The appeal of the Simonson, supra, case was not
published until a few months after this trial decision,
and this provincial court judge did not have the benefit
of reading it along with the appeal decision of Baynton
J., in R. v. Simonson (S.), [2002] S.J. No. 412;
221
Sask.R. 156 (Q.B.). However, it is now clear that, at
this appellate level, the issue of use of uncorroborated
evidence of the accused to rebut the presumption of
accuracy provided by s. 258(1)(g) of the Criminal Code
has been decided. I need say no more about it. [See Note
12 below]

Note 12: R. v. Fox (2002), 229 Sask.R. 284 (Q.B.).

¶ 14
Thus, the summary conviction appeal court judge
agreed with the trial judge that evidence of low alcohol
consumption without more can rebut the presumption of
accuracy, but that the trial judge's reliance on the roadside
screening test merited a new trial. The Crown appeals from
this decision.

V. CAN LOW ALCOHOL CONSUMPTION CONSTITUTE EVIDENCE TO THE
CONTRARY CAPABLE OF REBUTTING THE PRESUMPTION OF ACCURACY?

A. The Presumptions Created by Section 258

¶ 15
Section 258 of the Criminal Code creates two
presumptions which I will review in this judgment. The first
presumption is variously called the "first presumption," the
"temporal presumption" or the "presumption of identity."
Arbour J. first used the phrase "presumption of identity" in
her dissenting judgment in R. v. St. Pierre. [See Note 13
below] The phrase has been adopted generally in Canada to
refer to the first presumption created by clause 258(1)(c).

(1) In any proceedings under subsection 255(1) in
respect of an offence committed under section 253 or in
any proceedings under subsection 255(2) or (3),

. . .

(c)

where samples of the breath of the accused have
been taken pursuant to a demand made under
subsection 254(3), if

(i)

[not yet proclaimed]

(ii)

each sample was taken as soon as
practicable after the time when the offence was
alleged to have been committed and, in the case
of the first sample, not later than two hours
after that time, with an interval of at least
fifteen minutes between the times when the
samples were taken,

(iii)

each sample was received from the accused
directly into an approved container or into an
approved instrument operated by a qualified
technician, and

(iv)

an analysis of each sample was made by
means of an approved instrument operated by a
qualified technician,

evidence of the results of the analyses so made is,
in the absence of evidence to the contrary, proof
that the concentration of alcohol in the blood of
the accused at the time when the offence was alleged
to have been committed was, where the results of the
analyses are the same, the concentration determined
by the analyses and, where the results of the
analyses are different, the lowest of the
concentrations determined by the analyses [emphasis
added];

¶ 17
Clause 258(1)(c) works this way. Upon certain
preconditions being met, the accused's blood alcohol content
when the samples are taken is presumed to be identical to that
when driving, hence, the phrase "presumption of identity."
One can challenge the presumption of identity, while still
accepting that the readings at the time of testing are
accurate-eg. through late or bolus consumption of alcohol
between the time of the offence and time of testing. [See Note
14 below] Our decision in Gibson [See Note 15 below] is an
example of a successful challenge to the presumption of
identity which resulted in a new trial being ordered where the
trial judge failed to consider evidence that the accused's
blood alcohol reading may not have been the same at the time
of driving as at the time of testing. (I recognize that clause
258(1)(d.1) now plays a role in assessing evidence to the
contrary challenging the presumption of identity, but the
issues raised by that clause are not engaged in this appeal so
I need not discuss it further.)

Note 14: R. v. St. Pierre, [1995] 1 S.C.R. 791.

Note 15: Gibson, supra note 7.

¶ 18
To put the presumption of identity in context, we
start with the "certificate of analyses" certified by a
"person designated as a qualified technician ... pursuant to
subsection 254(1) of the Criminal Code." In signing the
standard form "certificate of analyses" in this case, the
"qualified technician" certified that:

1.

he took two samples of Mr. Fox's breath that in his
opinion were necessary to enable proper analyses to
be made to determine the concentration, if any, of
alcohol in Mr. Fox's blood;

2.

he received each sample directly into an Intoxilyzer
5000C, which is an approved instrument as defined in
subsection 254(1) of the Criminal Code; and

3.

he analysed each sample by means of the Intoxilyzer
which was ascertained by him to be in proper working
order by means of an alcohol standard that was
suitable for use with the approved instrument which
he identifies as an ethyl alcohol standard, Alcohol
Countermeasure Systems lot 9907D.

The presumption of identity applied to this certificate means
that Mr. Fox's blood alcohol content at the time of driving
(3:30 a.m.) is presumed to be the same as when he blew into
the Intoxilyzer (4:08 a.m.). His blood alcohol content is,
therefore, presumed to be .13 at the time of driving. All
this, however, assumes the accuracy of the information
contained in the certificate, which brings us to the second
presumption.

¶ 19
The second presumption, called the presumption of
accuracy and the one which arises here, is found through the
application of subsection 25(1) of the Interpretation Act [See
Note 16 below] to clause 258(1)(g) of the Criminal Code.
Clause 258(1)(g) states:

Note 16: Supra note 1.

258.

(1) In any proceedings under subsection 255(1) in
respect of an offence committed under section 253 or in
any proceedings under subsection 255(2) or (3),

. . .

(g)

where samples of the breath of the accused have
been taken pursuant to a demand made under
subsection 254(3), a certificate of a qualified
technician stating

(i)

that the analysis of each of the samples
has been made by means of an approved
instrument operated by the technician and
ascertained by the technician to be in proper
working order by means of an alcohol standard,
identified in the certificate, that is suitable
for use with an approved instrument,

(ii)

the results of the analyses so made, and

(iii)

if the samples were taken by the
technician,

(A) [not yet proclaimed]

(B)

the time when and place where each
sample and any specimen described in
clause (A) was taken, and

(C)

that each sample was received from the
accused directly into an approved
container or into an approved instrument
operated by the technician,

is evidence of the facts alleged in the
certificate without proof of the signature or
the official character of the person appearing
to have signed the certificate [emphasis
added];

¶ 20
Clause 258(1)(g) is nothing more than a statutory
exception to the hearsay rule, but "the presumption of
accuracy" - i.e., the presumption that the results of the
analyses of the breath of the accused accurately reflect the
blood alcohol concentration of the accused when he or she blew
into the device - is found in subsection 25(1) of the
Interpretation Act, which reads:

25.(1)

Where an enactment provides that a document is
evidence of a fact without anything in the context to
indicate that the document is conclusive evidence, then,
in any judicial proceedings, the document is admissible
in evidence and the fact is deemed to be established in
the absence of any evidence to the contrary.

Thus, with the application of this subsection, the facts
stated in the certificate are "deemed to be established in the
absence of any evidence to the contrary." This includes the
statement contained in the certificate that the machine has
been "ascertained by the technician to be in proper working
order." That is the extent of this "presumption."

¶ 21
The presumption of identity establishes that the
blood alcohol content at the time of the test indicates the
blood alcohol content at the time of driving. A challenge to
the presumption of identity accepts the reading at the time of
the test, but argues that the reading at the time of driving
could not be what the machine showed, not because that reading
was not accurate, but because it does not reflect the blood
alcohol level at the time of driving.

¶ 22
While the presumption of identity concerns the
blood alcohol content at the time of driving, the concern of
the presumption of accuracy, on the other hand, is the blood
alcohol content at the time of the test. Evidence directed to
the blood alcohol content at the time of the test is the
category of evidence which is capable of being evidence to the
contrary for the purposes of rebutting the presumption of
accuracy. Thus, evidence to the contrary for the purposes of
challenging the presumption of identity must be evidence which
accepts the result at the time of the test and shows that the
blood alcohol content at the time of the test does not reflect
the blood alcohol content at the time of driving. Thus,
Iacobucci J. in R. v. St. Pierre states:

[29] I agree with the following remarks of Arbour J.A.,
found at p. 237, which distinguish between the two
presumptions:

This presumption [of identity] can be displaced by
evidence to the contrary; that is, any evidence
which raises a reasonable doubt that the levels at
the two different points in time were in fact
identical. [See Note 17 below]

Note 17: St. Pierre, supra note 14 at 812.

¶ 23
In this case, Mr. Fox states that his blood
alcohol content was not .13 at the time of driving because it
was not .13 at the time of the test. This second prong to his
argument makes this a presumption of accuracy case. He argues
that the reading cannot be correct because he did not drink
enough to generate that level. Thus, his evidence is directed
at the operation of the machine, or its accuracy, and is not
directed at whether those results show his blood alcohol
content at the time of driving. The issue put forward by the
Crown is whether evidence of low alcohol consumption, on its
own, is capable of rebutting the presumption of accuracy, or,
is some specific evidence directed to the machine, or its
operation, required.

¶ 24
In my view, the trial judge's decision was
predicted by our decisions in R. v. Goddu, [See Note 18 below]
R. v. Parent, [See Note 19 below] R. v. Gibson, [See Note 20
below] and R. v. Kaminski, [See Note 21 below] and the many
Provincial Court and Queen's Bench decisions on point plus
authorities from other appellate courts. This law is not
changed, as Crown counsel argues, by dicta contained in the
Supreme Court of Canada decisions in R. v. Moreau, [See Note
22 below] R. v. Crosthwait, [See Note 23 below] and R. v. St.
Pierre. [See Note 24 below] I also find support in five
appellate decisions from other jurisdictions. I will now
review this jurisprudence.

¶ 25
In Goddu, [See Note 25 below] the accused blew
.18 and then .17. While the accused was found guilty at trial,
this Court, speaking through Cameron J.A., ordered a new
trial. It was not necessary for the accused to have
"established" or "shown" [See Note 26 below] that the results
of the tests were inaccurate, but rather to raise a reasonable
doubt about whether the accused, at the time of driving, was
over .08, in order for the presumption to be rebutted. In
Gibson, which clarified the distinction between the two
presumptions for this jurisdiction, Goddu is classified as a
"presumption of accuracy case." [See Note 27 below] Thus, in
Goddu this Court has already said that an accused who calls
into question the accuracy of the test results need not
"establish" or "show" that the results were inaccurate. In
Goddu, the only evidence proffered by the accused pertained to
the accused's limited consumption of alcohol, his condition as
an asthmatic, his use of a medicated asthma spray and some
evidence of the possible effect of all this on the
breathalyzer result. There was no scientific evidence
pertaining to the specific machine's operation.

Note 25: Goddu, supra note 18.

Note 26: Ibid. at para. 11.

Note 27: Gibson, supra note 7 at 39.

¶ 26
Goddu builds on our earlier decision in Parent
where this Court considered whether certain evidence was
"evidence to the contrary" within the meaning of what is now
subsection 25(1) of the Interpretation Act. In Parent, the
first test was .18 and the second .16. There was a 22-minute
interval between the two. Two noted experts testified that it
was not possible for an individual to eliminate alcohol this
rapidly (60 milligrams in one hour). After referring to
Crosthwait, Bayda C.J.S., writing for the Court, said:

[9] While it is true that the evidence of Dr. Jutras and
Dr. Cohen in the present case casts doubt upon the
absolute accuracy of the results of the two chemical
analyses, the evidence does not "leave a doubt as to the
blood-alcohol content of the accused person being over
the allowable maximum". Here, the highest reading was 100
millilitres (of alcohol in 100 milligrams of blood) over
the maximum limit of 80 milligrams, and the lowest
reading 80 milligrams over the maximum limit. Nothing in
the evidence of Dr. Jutras or Dr. Cohen has the effect of
reducing these proportions to a level where it can be
said that the evidence raises a reasonable doubt about
whether the appellant was over the allowable maximum. The
two doctors said only that the readings were unreliable
but said nothing about how unreliable. Their evidence met
the qualitative but not the quantitative aspect of the
test. Accordingly, their evidence does not qualify as
"evidence to the contrary" within the meaning of s.
237(1)(c) of the Code.

. . .

[11] Does the evidence of Dr. Jutras and Dr. Cohen
qualify as "evidence to the contrary" within the meaning
of s. 24(1) of the Interpretation Act to invalidate for
evidentiary purposes the whole or any part of the
certificate made under s. 237(1)(f) of the Code?

. . .

[14] There can be no reasonable suggestion that the
evidence of Dr. Jutras and Dr. Cohen contradicts any of
the facts specified in clauses (i) or (iii) of s.
237(1)(f) as those facts are more particularly set forth
in the certificate. In each instance, the evidence and
the fact can stand together. Only when the evidence is
examined in relation to the fact specified in clause (ii)
does the possibility of a contradiction emerge. Does the
evidence of the doctors contradict the results of the
chemical analyses? As noted, the evidence may cast doubt
upon the accuracy of the results, but it can hardly be
said to cast doubt upon the fact of the results. The
evidence may suggest that the technician should have
obtained a different result, but it does not suggest that
he actually obtained a result different from what he said
he obtained. In the end, the evidence and the fact can
stand together and do not contradict. Hence, I find that
the evidence of the two doctors does not qualify as
"evidence to the contrary" within the meaning of s. 24(1)
of the Interpretation Act. The certificate of analyses
thus remains unimpeached. [See Note 28 below]

Note 28: Parent, supra note 19 at 365-67.

Thus, the Court rejected the expert's evidence as not being
evidence to the contrary because of its unspecific and
speculative nature: it did not address the question of the
accused's very high rating of .16 or bring the reading below
the allowable limit. In this case, Mr. Fox's expert's evidence
brings him below .08 which means that the certificate and his
evidence "cannot stand together," to use the words in Parent.

¶ 27
Then in Gibson, the accused sought to adduce
evidence of a different alcohol level when driving than when
he blew into the machine. He did this for the purpose of
rebutting the presumption of identity by showing that the
breathalyzer reading was not identical to his alcohol level at
the time of driving. The accused had been drinking in a
measured way between 7:30 p.m. and 10:30 p.m. and consumed his
last two drinks "in quite a bit faster manner." [See Note 29
below] He was stopped by the police at 10:40 p.m. and did not
give a breath sample until 11:20 p.m. The expert witness
testified as to the possible effect of unabsorbed alcohol on
the breathalyzer results. The trial judge rejected this
evidence as not being evidence to the contrary for the
purposes of the presumption of identity. This Court allowed
the appeal and ordered a new trial.

Note 29: Gibson, supra note 7 at 31.

¶ 28
While Gibson is a presumption of identity case,
Bayda C.J.S. thoroughly reviewed the Supreme Court authorities
of Moreau and Crosthwait, which are presumption of accuracy
cases, and he also provided extensive guidance on how to
determine what constitutes evidence to the contrary:

... A judge should look for evidence - "some evidence"
- which could make a material difference. The difference
is material if it tends to put the accused within the
permitted limit. A difference which tends to show a
concentration less than the breathalyzer results but not
sufficiently less to put it within the permitted limit is
not material (see this court's decision in Batley). If
the judge finds evidence which could make a material
difference, it is evidence which is "sufficient at least
to raise a reasonable doubt" and thus sufficient to rebut
the presumption. I should observe that in this context I
equate the phrase "could make a material difference" with
"may reasonably be true" which was the phrase used in R.
v. Proudlock (1978), 43 C.C.C. (2d) 321, 91
D.L.R. (3d)
449, [1979] 1 S.C.R. 525 (referred to by Pigeon J. in
Crosthwait) as the basis for the standard of evidence
required to raise a reasonable doubt sufficient to rebut
a similar statutory presumption there under
consideration. ... [See Note 30 below]

Note 30: Ibid. at 41-42.

... The process of determining whether an item or a
series of items of evidence is "evidence to the contrary"
is a process whereby the adjudicator places a value on
the evidence with a view to deciding whether there is
sufficient value or worth there for the fact-finder to
take the evidence into consideration should the time come
for him or her to balance and weigh the whole of the
evidence in order to make a finding of the fact in issue.
In short, the process is one of determining the probative
value of the evidence. The process is not one involving
demonstration or one of producing a finding of the fact
in issue. In short, it is not one of determining the
persuasive value of the evidence. That comes later (and
only if the presumption is rebutted).

What kind of evidence is "evidence to the contrary"
within the meaning of s. 258(1)? The cases broadly
delineate two categories: (i) evidence which is directed
at showing the blood-alcohol concentration of the accused
at the time when the offence is alleged to have been
committed-the time of driving-and at showing that the
concentration is not the same as that indicated by the
chemical analyses done within two hours after the
driving, and (ii) evidence which is directed at the
accuracy or reliability of the chemical analyses. [See
Note 31 below]

Note 31: Ibid. at 34-35.

The trial judge in the case before us applied Gibson. He found
Mr. Fox's evidence, which he could not reject out of hand, to
be, in the words of Gibson, "evidence which is directed at the
accuracy or reliability of the chemical analyses." [See Note
32 below]

Note 32: Ibid.

¶ 29
Then, in Kaminski, the accused testified that in
the 50 minutes prior to being stopped by the police, he had
consumed two beers only. There was also evidence of exposure
to chemical fumes. The trial judge accepted expert evidence to
the effect that no significant amount of solvent would affect
the breathalyzer readings, but then went on to say simply
"[t]here is no evidence to the contrary before me." [See Note
33 below]

Note 33: Kaminski, supra note 21 at para. 16.

¶ 30
As Bayda C.J.S., writing for the Court in
Kaminski, points out, it was unclear what the trial judge did
with the evidence of the accused to the effect that he had
consumed two beers in the 50 minutes immediately prior to
driving. A new trial was ordered because it was incumbent upon
the trial judge to consider the accused's evidence, coupled
with the Crown's expert's testimony as to the effect of such
consumption on the reading at the time of driving, as evidence
to the contrary for the purposes of clause 258(1)(c). In doing
so, the Court provides these additional helpful distinctions
between the two presumptions:

[20] In Gibson the majority judgment referred to the
broad delineation by the cases of two categories of
"evidence to the contrary":

(i)

evidence which is directed at showing the
blood-alcohol concentration of the accused at the
time when the offence is alleged to have been
committed-the time of driving-and at showing that
the concentration is not the same as that indicated
by the chemical analyses done within two hours after
the driving, and

(ii)

evidence which is directed at the accuracy or
reliability of the chemical analyses.

There is no doubt that evidence pertaining to the effect
of the inhalation of chemical fumes upon the breathalyzer
readings which the accused sought to have declared as
"evidence to the contrary" was an example (potential) of
the second category of "evidence to the contrary". It was
evidence directed at showing the inaccuracy or
unreliability of the results of the chemical analyses of
the accused's breath at 2:27 a.m. and 2:47 a.m. Even if
he had not preferred Mr. Laughlin's evidence in this
respect over Dr. Michel's and had relied solely on Dr.
Michel's evidence, the trial judge in reaching his
conclusion that this evidence was not "evidence to the
contrary" would have been right. The principles
established by the Supreme Court of Canada in R. v.
Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R.
603; 25 Nfld. &
P.E.I.R. 509; 68 A.P.R. 509; 52 C.C.C. (2d) 129;
111
D.L.R. (3d) 431; 6 M.V.R. 1, and applied by this court in
R. v. Parent (1982), 17 Sask.R. 361; R. v. Goddu (1984),
34 Sask.R. 251; 28 M.V.R. 117, and R.
v. Batley (1985),
39 Sask.R. 259; 32 M.V.R. 257; 19 C.C.C.
(3d) 382,
confirm the correctness of this conclusion. But it is not
this second category evidence which concerns us in this
case. [See Note 34 below]

Note 34: Ibid. at 198.

¶ 31
As the Court makes clear in the preceding
paragraph, the evidence of chemical inhalation was the type or
category of evidence which pertained to the presumption of
accuracy. Referring to Crosthwait, [See Note 35 below] Parent,
[See Note 36 below] Goddu [See Note 37 below] and R. v.
Batley, [See Note 38 below] Bayda C.J.S. maintained that the
evidence of chemical inhalation in the case before him would
not, as a matter of law, constitute evidence to the contrary
sufficient to rebut the presumption of accuracy because it did
not go far enough. It did not bring the accused within the
permitted limit.

Note 35: Crosthwait, supra note 23.

Note 36: Parent, supra note 19.

Note 37: Goddu, supra note 18.

Note 38: (1985), 19 C.C.C. (3d) 382; (1985), 39 Sask.R. 259.

¶ 32
I recognize that the Court in Kaminski did not
address the point that we are now considering-whether evidence
standing on its own of "low alcohol consumption," coupled with
a toxicologist's evidence, rebuts the presumption of
accuracy-but, from the record, it is apparent that the issue
was not argued. Thus, it is not direct authority for the
proposition being put forward here, but the significance of
the case for us is what Kaminski says, in obiter, about
evidence to the contrary for the purposes of rebutting the
presumption of accuracy and how the trial judge determines
whether such evidence exists.

¶ 33
In Kaminski, it was sufficient to adduce evidence
of consumption coupled with expert evidence to establish that
at the time of the offence the accused's alcohol level was
within the permitted limit. Evidence tendered to rebut the
presumption of accuracy was rejected because it did not bring
the accused within the allowable limit. But, in the appeal
before us, we have the kind of evidence which was missing in
Kaminski. Mr. Fox testified as to alcohol consumption, the
trial judge was not able to reject it out of hand, and an
expert opined that, as a result of what may be an inaccuracy
in the machine, Mr. Fox's alcohol level was within the
permitted limit.

¶ 34
This is also the way in which the law has been
interpreted by the many Provincial Court and Court of Queen's
Bench judges writing in this province. For example, in R. v.
Simonson, [See Note 39 below] which was relied upon by the
trial judge and the summary conviction appeal court judge in
this case, Meekma P.C.J. wrote:

Note 39: [2001] S.J. No. 570

[29] I agree with Crown counsel that when weighing the
evidence, we must give appropriate weight to the analysis
of an instrument approved under statutory authority, and
not relegate it to the category of ordinary instruments.
But in my opinion that is only one factor which adds to
the weight, or persuasive value, of that particular piece
of evidence. The onus of proof is still on the Crown, and
although the results should be given more weight than the
results of any ordinary instrument, they are not
conclusive and it must still be open to the Court to
accept the uncorroborated evidence of the accused and
find a reasonable doubt at the stage where the evidence
is weighed-that stage when we weigh the persuasive value
of the evidence, after the presumption has been rebutted.
Assessing credibility is far from a perfect science,
relying as it does on our impressions of a witness, his
demeanor and forthrightness, and the skill of the
cross-examiner. But it is an integral part of the trial
process as we know it and it must remain open to the
fact-finder to believe the uncorroborated evidence of the
accused and acquit him. In fact, if the fact-finder
believes the accused he or she must acquit him. (R. v.
W.(D.), [1991] 1 S.C.R. 742).

¶ 35
The Supreme Court authorities do not change this
view. In Moreau, I note that Beetz J., for the Court, rejected
evidence which raised only a "possible uncertainty," [See Note
45 below] and Pigeon J. for the Court in Crosthwait rejected
evidence of a "conjectural possibility." [See Note 46 below]
But both cases involved challenges attacking the system or the
process by which an accused may be found guilty using the
results of an approved instrument. They do not concern the
case we have here, which is one where the trial judge found
the accused's testimony "plausible" coupled with an expert's
testimony which place the accused's alcohol level below the
permitted limit and in direct contradiction to the
certificate.

Note 45: Moreau, supra note 22 at 272.

Note 46: Crosthwait, supra note 23 at 1102.

¶ 36
In Crosthwait, for example, a chemist testified
that there was a possibility that the air temperature in
different parts of the room could be different, but he could
not say what effect any difference in temperature would have
upon the breathalyzer results. There was evidence taken from
the breathalyzer manual stating that the temperature of the
standard alcohol solution and of the room air must be within
one degree celsius of each other if accurate answers are to be
obtained. The breathalyzer technician had not verified that
the two were within one degree celsius of each other.

In the instant case, the certificate filed at the
trial fully complies with the conditions stated in para.
(f). It was, therefore, by itself, evidence of the
results of the analyses. With respect, I cannot agree
that there is another implicit condition namely, that the
instrument used must be shown to have been functioning
properly, and the technician had followed the
manufacturer's instructions in testing its accuracy. It
is clear from the wording of the Code that the rebuttable
presumption arises from the mere statements in the
certificate itself. The presumption may no doubt be
rebutted by evidence that the instrument used was not
functioning properly but the certificate cannot be
rejected on that amount. It may very well be that a
scientist would not sign a certificate of analysis on the
basis of the tests as performed by the technician, but
this is irrelevant. Parliament has prescribed the
conditions under which a certificate is evidence of the
results of breath analyses and did not see fit to require
evidence that the approved instrument was operating
properly. Parliament did not see fit to require a check
test be made with a standard alcohol solution and made
reference only to the solution used for the actual test.
Technicians are instructed to make a check test but the
making of this test or its results have not been made
conditions of the validity of the certificate and it has
not been provided that the certificate would not be valid
if it was not shown that the instrument had been
maintained and operated in accordance with the
manufacturer's instructions.

There is no need to dwell on the reasons for which
Parliament did not specify those additional conditions,
they are obvious. In R. v. Moreau [ [1979] 1 S.C.R. 261],
Beetz J. said (at p. 273):

... one of the reasons if not the only reason why
Parliament prescribed the use of approved
instruments must have been that it wanted its
precise prohibition to be exactly enforceable. This
intent would be frustrated if approved instruments
were treated as ordinary instruments.

This does not mean that the accused is at the mercy
of the technician: while the certificate is evidence by
itself, the facts of which it is evidence are "deemed to
be established only in the absence of any evidence to the
contrary". Thus, any evidence tending to invalidate the
result of the tests may be adduced on behalf of the
accused in order to dispute the charge against him. As
was pointed out in R. v. Proudlock [ [1979] 1 S.C.R.
525], it is not necessary in such cases that the
rebutting evidence should do more than raise a reasonable
doubt and, of course, this evidence may be sought in
depositions given by witnesses of the Crown as well as in
depositions of defence witnesses. Therefore, in my view,
the situation here is that the certificate was evidence
of the results of the analyses by virtue of the express
provisions of the Criminal Code, however, the further
question remained: Was there any evidence to the contrary
sufficient at least to raise a reasonable doubt? [See
Note 47 below]

Note 47: Ibid. at 1099-1100.

. . .

I am therefore of the opinion that the evidence of Dr.
Newlands does not constitute evidence to the contrary
under s. 237(1)(c) of the Criminal Code. Mere possibility
of some inaccuracy will not assist the accused. What is
necessary to furnish evidence to the contrary is some
evidence which would tend to show an inaccuracy in the
breathalyzer or in the manner of its operation on the
occasion in question of such a degree and nature that it
could affect the result of the analysis to the extent
that it would leave a doubt as to the blood alcohol
content of the accused person being over the allowable
maximum. There is no such evidence before the Court in
the case at bar. Dr. Newlands' testimony, taken at its
face value, does not supply it. It merely affords
evidence of a mere possibility of some inaccuracy in the
check test, but no evidence as to the extent of such
inaccuracy in the case at bar or as to the possibility or
probability of the effect which any such inaccuracy might
have had upon the results of the breath analysis. The
certificate therefore remains uncontradicted. [See Note
48 below]

Note 48: Ibid. at 1101.

. . .

In my view in order to conclude that there was no
evidence before the Magistrate to rebut the certificate,
it is enough to note that the only evidence was merely of
a possibility of a temperature difference without any
indication that this could have affected the results to a
significant extent. While it is for the trier of fact to
weigh the evidence, the question whether there is any
evidence is a question of law and an acquittal based on
doubt resting on a conjectural possibility will be set
aside: Wild v. The Queen [ [1971] S.C.R. 101]. [See Note
49 below]

Note 49: Ibid. at 1102.

¶ 38
But these comments, and those in Moreau, are
explicable on the basis that an accused cannot avail himself
or herself of evidence attacking the system, as such, which
determines blood alcohol content by means of an approved
instrument and qualified technician. Mr. Fox is not attacking
the system or its general operation. Instead, he argues that
he did not consume enough alcohol to justify a reading of .13,
and therefore there can be no other conclusion than that the
approved instrument malfunctioned or there was an error in its
operation. For my part, Moreau and Crosthwait do not address
the issue at hand.

¶ 39
Then in St. Pierre, Iacobucci J., writing for the
majority, clarified for the first time, the true distinctions
between the presumption of identity and the presumption of
accuracy. While St. Pierre is a presumption of identity case,
as Iacobucci J. makes clear, he offers a number of helpful
comments about the presumption of accuracy. Crown counsel asks
us to look at these comments to show that something more than
evidence of low alcohol consumption is necessary to rebut the
presumption of accuracy:

[34] The second critical case is R. v. Crosthwait,
supra. This Court established that there is nothing in s.
258(1)(c) of the Criminal Code establishing a presumption
of accuracy. In this case, an accused was being tried for
"over 80", and in defence he argued that the results of
the breathalyzer were not reliable because the technician
did not confirm that there was less than a one degree
difference between the air temperature and the
temperature of the solution, as the manufacturer's
instruction manual said must be done before an accurate
result could be obtained. Pigeon J., for a unanimous
Court, pointed out the distinction between the
presumption of identity, contained in s. 258(1)(c), and
the presumption of accuracy in s. 258(1)(g) and s. 25 of
the Interpretation Act. After quoting these sections,
Pigeon J. said (at p. 1099) that "[i]t is clear from the
wording of the Code that the rebuttable presumption
arises from the mere statements in the certificate
itself. The presumption may no doubt be rebutted by
evidence that the instrument used was not functioning
properly but the certificate cannot be rejected on that
account".

[35] In that case, the accused was not attacking the
presumption of identity, that is, he was not claiming
that his blood alcohol level as recorded on the
breathalyzer was not the same as his blood alcohol level
at the time he was driving. Rather, he argued that the
blood alcohol level recorded by the breathalyzer did not
accurately reflect his actual blood alcohol level,
because the technician did not compare the temperatures
of the air and solution before proceeding. In other
words, he was attacking the presumption of accuracy.
Therefore, the evidence he led to try to rebut this
presumption was not "evidence to the contrary" under s.
258(1)(c), but was "evidence to the contrary" under s. 25
of the Interpretation Act. Pigeon J. made this clear when
he said (at p. 1100):

... while the certificate is evidence by itself,
the facts of which it is evidence are "deemed to be
established only in the absence of any evidence to
the contrary". Thus, any evidence tending to
invalidate the result of the tests may be adduced on
behalf of the accused in order to dispute the charge
against him. . . . Therefore, in my view, the
situation here is that the certificate was evidence
of the results of the analyses by virtue of the
express provisions of the Criminal Code, however,
the further question remained: Was there any
evidence to the contrary sufficient at least to
raise a reasonable doubt? [See Note 50 below]

Note 50: St. Pierre, supra note 14 at 813-14.

¶ 40
But Iacobucci J. quotes here the same passages
from Beetz J. in Moreau and Pigeon J. in Crosthwait which I
have previously considered. These cases reject evidence that
is aimed at "denying its [the presumption's] very existence"
or "evidence solely directed at defeating the scheme
established by Parliament under ss. 236 and 237 [now sections
237 and 238 respectively]." (See: Moreau. [See Note 51
below]) But that is a different issue than Mr. Fox has
raised.

Note 51: Moreau, supra note 22 at 271.

¶ 41
Other passages, fairly pointed out by Crown
counsel, indicate a better reading of St. Pierre for the issue
before us:

[48] The problem with this line of reasoning is that the
majority [of the Ontario Court of Appeal in St. Pierre]
is confusing the presumptions. Their point is a valid one
with respect to the presumption of accuracy. When an
accused seeks to rebut the presumption of accuracy, as
contained in s. 258(1)(g) and s. 25 of the Interpretation
Act, it does not matter that they are able to prove that
their actual blood alcohol level should have been .150
instead of the .200 as recorded on the breathalyzer. This
is immaterial as far as the commission of the offence is
concerned. This is why it is well established that, in
order to rebut this presumption, the accused must adduce
or point to evidence which tends to show that his or her
blood alcohol level was actually under .08. [See Note 52
below]

Note 52: St. Pierre, supra note 14 at 818.

As Iacobucci J. says in this passage: to rebut the presumption
of accuracy, the accused must adduce or point to evidence
which tends to show that his or her blood alcohol level was
actually under .08 at the time of the offence, but in making
this comment, he does not mention the need for scientific
evidence directed to the particular machine's operation.

¶ 43
In each of these five cases, the accused
testified that he had consumed little alcohol and a
toxicologist testified that the amount of alcohol consumed
should not have resulted in the over .08 reading obtained.
There was no direct evidence in any of these cases attacking
the work of the qualified technician, the machine's operation
or the quality of the sample. Nonetheless, in each of these
cases, the defence evidence was found to constitute evidence
to the contrary.

... To hold otherwise [and require scientific or
similar evidence] might well restrict probative evidence
to an attack on the fallibility of the particular
Borkenstein Breathalyzer instrument used in the case, or
to evidence of circumstances intervening between the time
of the alleged offence and the time of the breath tests
such as, for example, consumption of quantities of
alcoholic beverages. [See Note 58 below]

Note 58: Kucher, supra note 54 at 121.

In Carter, Finlayson J.A., speaking for the Court, raised the
issue of a person who had testified that he did not drink on
any occasion and had nothing to drink prior to being tested.
In such circumstances, Finlayson J.A. held that the trial
judge would have to either disbelieve the accused or accept
that, for some reason or another, the breathalyzer reading is
wrong. He found the latter course to be more acceptable:

Clearly, since the breathalyzer instrument is
intended to measure the quantity of alcohol in the person
being tested, any evidence as to how much alcohol the
person tested had in fact consumed is relevant evidence
and if accepted can raise a doubt as to the accuracy of
the breathalyzer reading. ... the trial judge must either
disbelieve the accused or accept that for some reason or
other the breathalyzer reading is wrong. [See Note 59
below]

Note 59: Carter, supra note 55 at 178.

In Gilbert, Osborne J.A., speaking for the Court, said:

... An accused who is charged with an offence, the
essence of which is that he was driving with an
impermissibly high blood-alcohol concentration level must
be able to lead evidence as to the quantity of alcohol
that he consumed at relevant times. I do not think it is
necessary that this kind of evidence be accompanied by an
attack on the particular breathalyzer machine, or its
operator. It may well be that without such an attack it
may be difficult for an accused to have the tendered
evidence accepted to the point of raising a reasonable
doubt. [See Note 60 below]

Note 60: Gilbert, supra note 57 at 280.

Thus, direct evidence which challenges the functioning or
operation of the machine is not required to rebut the
presumption of accuracy.

¶ 45
Crown counsel in this case sought to distinguish
these five cases on a number of bases: (i) the last four cases
rely on Davis, which Crown counsel distinguishes for several
reasons including its assimilation of the two presumptions and
the limited question asked of the Court in that case; (ii)
all five were decided before St. Pierre; (iii) Carter is a
blood case; (iv) they give no weight to the Crown's disclosure
obligations under Stinchcombe [See Note 61 below] and the
corresponding lack of any defence disclosure; and (v) they do
not explain how Parliament could have approved instruments
which are inherently and, without explanation, randomly
infallible.

Note 61: R. v. Stinchcombe, [1991] 3 S.C.R. 326.

¶ 46
I agree that these cases are not without
difficulty, and I do not adopt all of what is said in them.
For example, Davis is troubling for a couple of reasons. It
refers to the presumption of identity while considering
evidence of low alcohol consumption, and in the result,
upholds an acquittal when the trial judge appears not to have
considered the whole of the evidence. Davis is, however,
explainable on two bases. First, it was an appeal by way of
stated case. The Court was asked to answer one question only:
was the defence evidence of low alcohol consumption capable
of being evidence to the contrary. Second, it predates St.
Pierre and makes no mention of the presumption of accuracy.
Nonetheless, it finds evidence of low alcohol consumption to
constitute evidence to the contrary, which makes it a
presumption of accuracy case and, therefore, applicable here.
(The fact situation in Davis raises the presumption of
identity, in that the test was taken 19 minutes after the
accused stopped driving, but the issue before the Court of
Appeal did not relate to this aspect of the evidence. The
Court of Appeal decision appears to concern only the matter of
low alcohol consumption.)

¶ 47
As Iacobucci J. in St. Pierre indicates, many
older decisions refer to the presumption of identity when the
presumption of accuracy is in play. [See Note 62 below] These
five cases make this same error, but it is clear that the
accused, in each case, is not only saying that the result at
the time the breath sample was taken did not reflect the
result at the time of driving. The accused is also saying that
the test result is wrong. Nonetheless, I do not think this
error detracts from the force of these cases. While the
evidence for the two presumptions is not the same, the test
for determining what constitutes evidence to the contrary is
the same for both presumptions, i.e., is there "some evidence"
which could make "a material difference"? The assimilation of
the two presumptions becomes a relevant consideration only
when one moves to the second stage of the analysis, which I
consider later.

Note 62: St. Pierre, supra note 14 at paras. 30 and 42.

¶ 48
As to the remaining Crown arguments used to
distinguish these five decisions, Gibson and St. Pierre do
not assist the Crown, and indeed, as I have indicated earlier
in these reasons, they assist Mr. Fox. I do not see how Carter
being a blood case changes matters. As to the last two
arguments, I believe they are better addressed as part of the
second stage analysis where the trial judge considers the
whole of the evidence, than at the point of determining
whether there is evidence to the contrary to rebut the
presumption of accuracy.

¶ 49
If the law were, as Crown counsel asserts, that
defence evidence of low or no alcohol consumption is
insufficient to rebut the presumption of accuracy, the rule
would apply in all cases. As Finlayson J.A. in Carter [See
Note 63 below] points out, even if the trial judge believes
the accused's testimony or is faced with irrefutable evidence
that the accused had little or nothing to drink, or otherwise
has a reasonable doubt about the accuracy of the machine or
the technician's operation of it, he or she would never reach
the stage of being able to assess that evidence against the
whole of the evidence. The trial judge would have to convict.
This cannot be.

Note 63: Carter, supra note 55.

¶ 50
Even without considering the Charter of Rights
and Freedoms, I can safely say that the administration of
justice could not support a result where the trial judge must
convict even though he or she believes the accused. A trial
judge must be able to consider whether, on the whole of the
evidence, he or she is left with a reasonable doubt as to the
accused's guilt. If scientific evidence must accompany
evidence of low alcohol consumption to rebut the presumption
of accuracy, the trial judge never reaches the stage of
assessing the evidence to determine whether a reasonable doubt
exists.

E. Summary of Analysis

¶ 51
From these decisions, particularly Moreau,
Crosthwait, St. Pierre, Kucher, Gibson, Gilbert, Dubois and
Kaminski, I conclude the following:

1.

case law prior to Gibson, in this jurisdiction, and
St. Pierre, nationally, must be read with the
realization in mind that many earlier decisions
tended to blur the presumptions of identity and
accuracy;

2.

evidence for one presumption may not be evidence for
the other, and in particular, evidence of low or no
alcohol consumption, alone, is evidence which
challenges the presumption of accuracy and not the
presumption of identity;

3.

to determine whether such evidence is capable of
rebutting the presumption of accuracy, a trial judge
looks for "some evidence" which could make "a
material difference";

4.

a material difference is one which tends to put the
accused within the permitted limit and which might
reasonably be true;

5.

evidence of low alcohol consumption alone, without
direct evidence of breathalyzer malfunction,
operator error or contamination, can be the type of
evidence which can constitute evidence to the
contrary capable of rebutting the presumption of
accuracy;

6.

at the stage of assessing the evidence to the
contrary, the trial judge considers the probative
value of the evidence and not its persuasive worth;

7.

once the trial judge determines there is evidence to
the contrary, the judge must still proceed to
consider the whole of the evidence without regard
for the presumption.

The trial judge followed that approach in this case. He
determined that Mr. Fox was challenging the presumption of
accuracy. He found some evidence which could place Mr. Fox
within the permitted limit and which might reasonably be true.
In weighing the evidence at the first stage of the Gibson
analysis, he said the evidence does not have to be accepted as
true, but only must need avoid rejection. [See Note 64 below]
He found he could not reject that evidence.

Note 64: Fox, supra note 8.

¶ 52
Accordingly, I answer "yes" to the first question
raised on appeal: evidence of low alcohol consumption,
without direct evidence of breathalyzer malfunction, operator
error or contamination, can be evidence to the contrary
capable of rebutting the presumption of accuracy created by
subsection 25(1) of the Interpretation Act as applied to
clause 258(1)(g) of the Criminal Code.

VI. CAN A COURT CONSIDER THE ROADSIDE SCREENING TEST WHEN
ASSESSING THE WHOLE OF THE EVIDENCE?

A. Question of Law Raised

¶ 53
The trial judge found Mr. Fox's testimony and Mr.
Miller's opinion to be evidence to the contrary for the
purposes of rebutting the presumption of accuracy.
Nonetheless, the trial judge ultimately rejected Mr. Fox's
testimony.

¶ 54
The trial judge wrote: "When I consider all of
the evidence of this case I do not believe that the accused is
giving an accurate account of his drinking during the night in
question. I cannot accept his testimony as reasonably being
true." The evidence to which the trial judge referred is this:
(i) the "persuasive evidence" of the approved instrument made
more so by the comments of the Supreme Court of Canada in
Moreau; (ii) the fact that Mr. Fox "blew a fail on an Alcotest
7410 GLC" which is "again a testing device approved by
Parliament" and "Officer Platford testified that this
instrument records a fail only at blood alcohol levels of 100
mg percent or more." He concluded by saying:

An accused is not left at the mercy of the qualified
technician and the certificate of analysis. An accused
has the right to disclosure of the maintenance and
calibration records of the instrument. The accused can
also request leave to cross-examine the qualified
technician. These are methods by which the accused can
test the accuracy of the instrument, together with
whatever other evidence is available. [See Note 65 below]

Note 65: Ibid.

As authority for the proposition that he could look at the
roadside screening results, the trial judge referred to
Kaminski and R. v. Martin. [See Note 66 below]

Note 66: Unreported decision of Deshaye J. Sask. Prov. Ct.
Jan 2002.

¶ 55
In Kaminski, Bayda C.J.S., speaking for the
Court, wrote:

[26] After finding "evidence to the contrary" the
approach the trial judge should have taken, as noted in
Gibson, is this. He should have found that the statutory
presumption did not apply. He should then have proceeded
to examine and weigh the whole of the evidence including
the evidence respecting the accused's driving, the
A.L.E.R.T. results, the breathalyzer readings at 2:27
a.m. and 2:47 a.m., the evidence of Mr. Laughlin,
particularly in relation to the unabsorbed alcohol at
1:50 a.m., and the evidence of the accused and his
companion as to the former's consumption of alcohol that
evening, all with a view to answering the question: Do I
have a reasonable doubt about the accused's blood-alcohol
concentration being in excess of 80 milligrams at 1:50
a.m.? Only then would he have been in a position to
render a verdict. The record does not show that to have
been his approach. [See Note 67 below]

Note 67: Kaminski, supra note 21 at 200.

(While the trial judge also referred to Martin, I do not see
it as dealing with this point.)

¶ 56
Then, on appeal, in the case at bar, the summary
conviction appeal court judge appears to have concluded that
Bernshaw [See Note 68 below] is the controlling authority on
point. She wrote:

Note 68: Bernshaw, supra note 10.

[3] It is established law that the A.L.E.R.T. testing
devices cannot be used for any other purpose than
investigation. It is the breathalyzer test which is
concerned with criminal liability. See: R. v. Bernshaw
(N.) (1995), 176 N.R. 81; 53 B.C.A.C.
1; 87 W.A.C. 1; 95
C.C.C. (3d) 193 (S.C.C.), at 206.

The evidence relating to the demand for a breath
sample to be used in the screening device and the
results of the test may only be used to decide
whether the officer had reasonable and probable
grounds for the breathalyzer demand. That evidence
cannot be used for any other purpose. ... [See Note
69 below]

Note 69: Fox, supra note 12 at 285.

It is on this basis that she ordered a new trial.

¶ 57
Crown counsel did not initially raise the issue
of the trial judge's consideration of the roadside screening
test because a negative answer to the first question would
have made the trial judge's reliance upon the roadside test
irrelevant. The appeal would have been allowed and the
conviction restored. An affirmative answer, however, affirms
the decision under appeal and, if the Court does not address
this second issue, Mr. Fox will be subjected to a new trial at
which the Court would be required to consider the result in
this case in light of the Kaminski decision. To avoid the
attendant confusion including the possibility of a further
appeal, the Court raised this issue with Crown counsel on the
hearing of the appeal, and based on a subsequent request of
the Court, he filed a further brief questioning this aspect of
the summary conviction appeal court judge's decision. The
Court, accordingly, reformulated the questions posed by the
Crown to add: did the summary conviction appeal court judge
err in ordering a new trial on the basis that the trial judge
erred in considering the results of the roadside screening
test?

¶ 58
In light of Kaminski, one may ask whether this
Court need go any further. While the comments in Kaminski are
obiter, they are nonetheless binding on this Court unless
distinguishable or we are prepared to say that the issue was
not addressed. While Mr. Fox is unrepresented, it must
nonetheless be considered as though he were asking this Court
to take the latter course and reconsider Kaminski in light of
recent Ontario Court of Appeal authority which distinguishes
its earlier jurisprudence and holds that a "fail" result
cannot be used to assess the accused's credibility.

B.

If the Presumption of Accuracy is rebutted, can the
Court still consider the certificate as some evidence?

¶ 59
It is important at this point to place the
question of whether a trial judge may have regard for the
roadside test in the context of the whole trial process. The
two-step process established by Gibson directs a trial judge
to determine first whether there is evidence to the contrary,
and if there is, to consider the whole of the evidence without
regard for the presumption. Subsequent case law interpreting
Gibson and St. Pierre has concluded that, as regards the
presumption of accuracy, the certificate remains part of the
evidence: Kaminski, [See Note 70 below] Rendle, [See Note 71
below] Jess, [See Note 72 below] Simonson, [See Note 73 below]
Hrebeniuk [See Note 74 below] and Krowicki. [See Note 75
below]

Note 70: Kaminski, supra note 21.

Note 71: Rendle, supra note 41.

Note 72: Jess, supra note 42.

Note 73: Simonson, supra note 40.

Note 74: Hrebeniuk, supra note 43.

Note 75: Krowicki, supra note 44.

¶ 60
Allen C. Edgar distinguishes between the
different functions which a presumption can play. [See Note 76
below] With respect to the presumption of accuracy and the
effect of subsection 25(1) of the Interpretation Act, he
writes:

This is not much of a presumption. Upon proof of the
basic fact that the breathalyzer indicated that the
accused's BAC was of a particular level, the presumed
fact is that the BAC was at the level. The presumption
merely compels an inference that would, it is submitted,
usually be made without the presumption. It adds little,
so rebuttal subtracts little. [See Note 77 below]

Note 77: Ibid. at 80.

Indeed, there are two parts to subsection 25(1). One part
creates the presumption and the other part, which is not
dependent on the presumption, renders the certificate
admissible.

¶ 61
The presumption of accuracy is not the same as
the presumption of identity on this point. Once the
presumption of identity is rebutted, the Crown must prove the
blood alcohol level of the accused at the time of driving by
other means, which usually involves an expert who can
interpret the breathalyzer reading and read it back to the
time of driving. Without this additional evidence, there is no
evidence which provides the blood alcohol level at the time of
driving. But when the presumption of accuracy is rebutted, the
presumptive effect of subsection 25(1) of the Interpretation
Act is eliminated, but the evidentiary aspect of that
subsection remains as does clause 258(1)(g) of the Criminal
Code. Clause 258(1)(g) states that the certificate is evidence
of the facts alleged in the certificate without proof of the
signature or the official character of the person who has
signed the certificate.

¶ 62
This is the view that has been taken of the
presumption of accuracy in this province in the cases above
cited. Except for one comment in St. Pierre, these authorities
would mean that I need say no more about this issue.

¶ 63
But, again, as Mr. Fox is not represented, Crown
counsel fairly pointed out this passage in St. Pierre:

[26] Clearly, the result of these two provisions is that
a presumption that the reading received on the
breathalyzer provides an accurate determination of the
accused's blood alcohol level at the time of the testing
is established. Hence, the certificate can be tendered in
evidence to prove what this blood alcohol level was.
However, if the accused leads or points to "evidence to
the contrary" which tends to show that, in fact, his or
her blood alcohol level, at the time of testing, was not
that shown on the certificate, then the certificate is no
longer proof of that fact. Therefore, for the Crown to be
successful it must prove the accused's blood alcohol
level some other way. Indeed, the Crown may still prove
that the blood alcohol level of the accused at the time
of the offence was over 80 mg of alcohol in 100 ml of
blood. This "presumption of accuracy" relates to the
accuracy of the readings at the time of the test, as
stated in the certificate of analysis, and is presumed by
the operation of s. 25 of the Interpretation Act, in the
absence of "evidence to the contrary". [See Note 78
below]

Note 78: St. Pierre, supra note 14 at 810.

¶ 64
This seems to indicate that once Mr. Fox
successfully rebutted the presumption of accuracy, there was
no longer any evidence before the trial judge of Mr. Fox's
blood alcohol reading of .13, such that we never reach the
second question of law. In my respectful view, this statement
must be read in light of established law, much of which is
referred to in St. Pierre: Kucher, [See Note 79 below] Gibson,
[See Note 80 below] Kaminski, [See Note 81 below] Gilbert [See
Note 82 below] and R. v. Coutts. [See Note 83 below] All of
these authorities take the view indicated above, which is that
the certificate remains. These comments, in para. 26 of St.
Pierre, must be read in light of the balance of the judgment,
which in my view, indicates that the certificate remains but
that the Crown must now prove its case on the whole of the
evidence.

¶ 65
If the certificate does not form part of the
evidence, there is no evidence of the accused's blood alcohol
content. There is no other way for the Crown to prove blood
alcohol level, after the fact, than by means of the analysis
of the accused's breath. The Court in St. Pierre could not
have been referring to calling the technician instead of using
the certificate because the rationale for providing the
certificate was to eliminate the need to call the technician,
and, more significantly, the technician would not be able to
add anything more with respect to the level of the blood
alcohol content than what is already shown on the certificate.
Procedurally, such an interpretation would be difficult to
sustain, as the Crown would have to convince the Court that
calling the technician would be appropriate rebuttal evidence
and permit an adjournment to procure the technician's
attendance.

¶ 66
Once an accused successfully rebuts the
presumption of accuracy, the certificate is no longer deemed
to establish the blood alcohol content at the time of testing,
to use the words of subsection 25(1) of the Interpretation
Act, but the certificate remains part of the evidence, and it
is some evidence of the facts contained therein. Thus, the
certificate, minus the presumption of its accuracy, is part of
the evidence being considered at the second stage of the
Gibson analysis.

C. Use of the Roadside Screening Test Result

¶ 67
Testing by means of the roadside screening device
is authorized by ss. 254(2) and 254(3) of the Criminal Code
which read:

(2)

Testing for presence of alcohol in the blood - Where
a peace officer reasonably suspects that a person who is
operating a motor vehicle or vessel or operating or
assisting in the operation of an aircraft or of railway
equipment or who has the care or control of a motor
vehicle, vessel, aircraft or railway equipment, whether
it is in motion or not, has alcohol in the person's body,
the peace officer may, by demand made to that person,
require the person to provide forthwith such a sample of
breath as in the opinion of the peace officer is
necessary to enable a proper analysis of the breath to be
made by means of an approved screening device and, where
necessary, to accompany the peace officer for the purpose
of enabling such a sample of breath to be taken.

(3)

Samples of breath or blood where reasonable belief
of commission of offence - Where a peace officer believes
on reasonable and probable grounds that a person is
committing, or at any time within the preceding three
hours has committed, as a result of the consumption of
alcohol, an offence under section 253, the peace officer
may, by demand made to that person forthwith or as soon
as practicable, require that person to provide then or as
soon thereafter as is practicable

(a)

such samples of the person's breath as in the
opinion of a qualified technician, or

(b)

where the peace officer has reasonable and
probable grounds to believe that, by reason of any
physical condition of the person,

(i)

the person may be incapable of providing a
sample of his breath; or

(ii)

it would be impracticable to obtain a
sample of the person's breath,

such samples of the person's blood, under the
conditions referred to in subsection (4), as in the
opinion of the qualified medical practitioner or
qualified technician taking the samples are
necessary to enable proper analysis to be made in
order to determine the concentration, if any, of
alcohol in the person's blood, and to accompany the
peace officer for the purpose of enabling such
samples to be taken.

¶ 68
With all due respect to the summary conviction
appeal court judge, I do not think that the Supreme Court's
decision in Bernshaw answers the question before us. The ratio
of Bernshaw [See Note 84 below] which applies here is
contained in these extracts taken from the judgment of Sopinka
J., writing in the majority:

Note 84: Bernshaw, supra note 10 at 285.

[49] It is clear that Parliament has set up a statutory
scheme whereby a screening test can be administered by
the police merely upon entertaining a reasonable
suspicion that alcohol is in a person's body. The purpose
behind this screening test is evidently to assist police
in furnishing the reasonable grounds necessary to demand
a breathalyzer. The roadside screening test is a
convenient tool for confirming or rejecting a suspicion
regarding the commission of an alcohol-related driving
offence under s. 253 of the Code. A "fail" result may be
considered, along with any other indicia of impairment,
in order to provide the police officer with the necessary
reasonable and probable grounds to demand a breathalyzer.
Normally, where a properly conducted roadside screening
test yields a "fail" result, this alone will be
sufficient to furnish a police officer with such grounds.

[50] Nonetheless, as I stated at the outset, it cannot
be said that a "fail" result per se provides reasonable
and probable grounds. If that were the case, it was open
to Parliament to indicate this intention in the Criminal
Code. Yet, nowhere in s. 254 is it indicated that a
"fail" result on an approved screening device is deemed
to provide reasonable and probable grounds. Thus, it is
necessary to determine as a question of fact in each case
whether or not the police officer had an honest belief
based on reasonable and probable grounds that the suspect
had committed an offence under s. 253 of the Code.

Thus, a police officer who suspects that a driver has been
drinking may demand that the driver submit to a roadside
screening test, the result of which may be used to determine
whether the officer has reasonable and probable grounds to
demand that the person submit to a breathalyzer test.

¶ 69
I acknowledge that Cory J., speaking for the
minority, in Bernshaw states:

[21] ... The ALERT test used as an investigatory tool
obviously causes far less inconvenience to a driver than
would a breathalyzer test. A driver who fails an ALERT
test is not subject to criminal liability but may be
required to take the more accurate breathalyzer test
provided for in s. 254(3) of the Criminal Code.

[22] It is the breathalyzer test which is concerned with
criminal liability. [See Note 85 below]

Note 85: Ibid. at 271-72.

This is authority for no more than the proposition that the
roadside screening test is not to be used as part of the
Crown's case to decide whether the accused was over .08 or
impaired. (Insofar as Lambert [See Note 86 below] extends this
ratio, it is not to be followed.) The rationale for this rule
is two fold: the sample is compelled; and there is normally no
right to counsel before giving a roadside screening device
sample because no criminal liability can follow (see R. v.
Talbourdet [See Note 87 below] and R. v. Thomsen [See Note 88
below]).

Note 86: Lambert, supra note 11.

Note 87: (1984), 12 C.C.C. (3d) 173 (Sask C.A.) at 181-82.

Note 88: [1988] 1 S.C.R. 640 at 649-50.

¶ 70
The issue which confronts us here, however, is
not the use of the roadside screening result to show that Mr.
Fox's blood alcohol content was over .08, or in other words,
to convict him of that offence on the basis of the "fail"
reading, but rather, to test the credibility of his statement
that he had consumed six beer only. The need to consider the
evidence is triggered by his evidence of low alcohol
consumption. The roadside result is being considered to answer
the question whether, without the presumption of accuracy, on
the whole of the evidence the Crown has proven its case beyond
a reasonable doubt.

¶ 71
This specific question has been considered by
other Courts of Appeal. In Coutts, [See Note 89 below] the
Ontario Court of Appeal held that the screening result cannot
be used even to evaluate the accused's credibility when he or
she offers evidence of a drinking pattern inconsistent with
the approved instrument reading. R. v. Milne, [See Note 90
below] however, is the underlying basis of the Court of
Appeal's decision in Coutts.

Note 89: Coutts, supra note 83.

Note 90: (1996), 107 C.C.C. (3d) 118 (Ont C.A.).

¶ 72
In Milne, the Court considered a provision of the
Ontario Highway Traffic Act which provides for roadside
sobriety tests. The issue was whether the state can use
sobriety test evidence to prove impaired driving. Citing the
Ontario Court of Appeal's earlier jurisprudence in R. v.
Saunders, [See Note 91 below] Moldaver J.A. emphasized that
the intention was not to provide evidence of an offence:

Note 91: (1988), 41 C.C.C. (3d) 532.

... I am not prepared to accept that s. 48(1) [of the
Ontario Highway Traffic Act providing for roadside
sobriety tests] would survive s. 1 Charter scrutiny if it
were found to be a device by which the police could
gather evidence for the purpose of incriminating a
motorist at his or her impaired driving trial. In my
view, such a scheme would impermissibly broaden the scope
and purpose of the testing procedures contemplated by s.
48(1). It would also render it constitutionally
permissible for the police, acting on mere suspicion, to
compel a detained motorist to participate directly in the
creation of self-incriminating evidence that could later
be used to convict the motorist at trial, absent any
requirement that the motorist be advised of his or her s.
10(b) Charter rights. To my mind, such a scheme would not
pass s. 1 Charter scrutiny. [See Note 92 below]

Note 92: Milne, supra note 90 at 129.

¶ 73
While Milne dealt with roadside sobriety tests,
the learned justice went on to draw an analogy to the roadside
screening device after referring to Thomsen. [See Note 93
below] Speaking generally of roadside testing being used to
incriminate an accused, he opined:

Note 93: Thomsen, supra note 88.

... If roadside test results could be used in this
manner, this would overshoot their limited objective. That
objective, it will be recalled, is to provide the police
with the tools needed to remove impaired drivers from the
highway immediately and thereby avoid the calamitous
results likely to occur if they are allowed to proceed. The
objective is not to convict impaired drivers at any cost.
If it were, there would be no reason for insisting that the
motorist be given his or her Charter rights when the
investigation moves to the arrest stage for impaired
driving or to a request for a breathalyzer demand pursuant
to s. 254 of the Criminal Code. And yet, the law is clear
that, at this juncture, the motorist is entitled to full
protection of the rights accorded by the Charter: R. v.
Therens, [1985] 1 S.C.R. 613.... That protection, I
suggest, would be hollow indeed if the state could simply
turn around and use the results of the roadside A.L.E.R.T.
test to convict the motorist of over 80, or, as in this
case, use the inability of the appellant to adequately
perform the physical co-ordination tests to convict the
appellant of impaired driving. [See Note 94 below]

Note 94: Milne, supra note 90 at 131.

For my part, this is a well-supported proposition resting on
good authority as referred to earlier: Talbourdet and Thomsen.

¶ 74
Then in Coutts, Moldaver J.A. wrote, again on
behalf of the Court:

[31] To the extent, however, that the Crown seeks to use
the roadside test results at trial to impeach "evidence
to the contrary", I am of the view that the principles in
Milne, supra, apply, such that the use of the evidence
for that purpose would render the trial unfair. The
unfairness arises because the motorist has been
compelled, at the behest of the state, to provide
evidence that would not have been obtained but for the
motorist's participation in its construction and the
evidence is being tendered for a purpose beyond that
contemplated by s. 254(2) of the Code. [see Milne, supra,
at pp. 127-128 and 133-134]

[32] Apart from constitutional considerations, on a
practical level, it seems to me that where roadside test
results are proffered for the limited purpose of
discrediting "evidence of the contrary", there is a real
danger that they will be used not for that purpose, but
rather, to bolster the reliability of the breathalyzer
readings. [See Note 95 below]

Note 95: Coutts, supra note 83 at 236.

¶ 75
Thus, the Ontario Court of Appeal, speaking
through Moldaver J.A., saw no distinction between using the
roadside evidence to gather evidence of the offence or using
it to test the accused's credibility. In reaching this
decision, the Court of Appeal had to distinguish its decision
in Gilbert where Osborne J.A., speaking for the Court, treated
the results of the roadside screening device and those of the
breathalyzer test, absent the presumption, on the same basis,
i.e., as a means of testing the accused's credibility.

¶ 76
In upholding the conviction in Gilbert, the Court
wrote:

It was open to the trial judge to consider the
respondent's breathalyzer readings (and the fact that he
failed the A.L.E.R.T. test) in the determination of
whether to accept the tendered evidence to the contrary.
In my opinion, the trial judge made it clear that he
rejected "the defence evidence as to alcohol
consumption". On the basis of the trial judge's findings
of fact, there was no evidentiary foundation to support
the conclusion that at the time of the offence, the
respondent's blood-alcohol concentration was below 80.
Accordingly, I think that the trial judge was correct in
finding the respondent guilty based upon the lower of his
two breathalyzer test readings-128 mg. of alcohol in 100
ml. of his blood. [See Note 96 below]

¶ 78
In my view, Coutts and Bernard are dependent for
their analysis on likening the use of the roadside screening
device to a confession. I find that I prefer the Ontario Court
of Appeal's approach in Gilbert.

¶ 79
The roadside screening test is not being used, on
its own, to convict the accused. It is, instead, some evidence
which the court can consider to test the accused's statement
that he or she had little to drink and to test the inference
which flows from that statement that the breathalyzer was not
working properly.

¶ 80
The Criminal Code does not preclude the use of
the roadside test in this manner. Parliament permits the
police officer to obtain this evidence to confirm a suspicion
that the driver may be over .08. While the accused has no
option but to provide the sample, it is difficult to see where
there may be an abuse of authority in the way such abuse may
arise when a confession is obtained. This is not a compelled
action by means of a state official against an individual as
one would see with respect to a confession. In this case,
Parliament has made the decision that individuals must provide
a roadside breath sample.

¶ 81
Once having obtained the result of the test, it
forms part of the officer's reasonable and probable grounds to
demand samples of the accused's breath. The procedure in this
jurisdiction is that the arresting officer details all of the
evidence from the initial contact with the accused until a
demand is made, for the purposes of laying the foundation for
his or her reasonable and probable grounds to have made the
demand. Thus, the evidence is before the court as part of the
record.

¶ 82
Until the accused takes the stand and swears that
he or she consumed little or no alcohol, the Crown does not
know what the accused's defence will be. In a system which
requires full Crown disclosure and no defence disclosure, it
is not unreasonable for the Crown, at that point in the trial,
to ask the court to consider the evidence of the roadside
screening device to weigh the accused's credibility. As Crown
counsel says "one should not exclude a dispassionate
assessment by an approved screening device which can
significantly help the trier of fact reach the truth."
Accordingly, I am not persuaded to abandon the approach
outlined in Kaminski.

D. Reliability of the Roadside Test

¶ 83
The next issue concerns the reliability of the
approved screening device result. In Coutts, the Court also
expressed concern about the accuracy of the device:

[20] Before considering the constitutional implications
of the distinction proposed by Ms. Woollcombe, I feel
obliged to point out that on the basis of this record,
even if I were to accept her argument, I would
nevertheless dismiss the appeal. I say that because in
the final analysis, the evidentiary value of roadside
test results to discredit "evidence to the contrary" is
dependent on the fact that roadside screening devices are
calibrated to register a "fail" where a motorist has a
blood-alcohol level equivalent to or greater than 100 mg
of alcohol per 100 ml of blood. And yet, no evidence was
led in this case to establish that critical fact. Nor for
that matter, was there any evidence as to when the
screening device was last calibrated or whether it was in
proper working order.

[21] Manifestly, where a roadside test is being used
solely for the purpose of confirming or rejecting a
police officer's suspicion that a motorist might be
impaired or over the legal limit, none of these facts
need be proved. It is sufficient if the administering
officer reasonably believes them to be true. Where,
however, the test result is being offered for the truth
of its contents, these facts must be proved by admissible
evidence. Therefore, even if it was open to the trial
judge to use the test result to discredit the "evidence
to the contrary" adduced by the respondent, the
evidentiary foundation needed to do so was missing. [See
Note 99 below]

Note 99: Coutts, supra note 83 at 232.

¶ 84
While I agree that there must be some evidence as
to when the device registers a "fail," which may at some point
become a matter of judicial notice, I do not agree that there
must be evidence of recent testing or opinion evidence as to
proper working order. The roadside test result is not being
used to convict the accused. It is merely "some evidence"
which the court can consider in weighing the whole of the
evidence. If evidence is led which calls into question the
proper functioning or recent testing of the device, the trial
judge may consider such evidence as part of the weighing
process, but the absence of evidence of proper functioning or
recent testing should not lead to the automatic rejection of
the test result.

¶ 85
I find some support for this proposition in these
words of Sopinka J. taken from Bernshaw:

[80] ...Where the particular screening device used has
been approved under the statutory scheme, the officer is
entitled to rely on its accuracy unless there is credible
evidence to the contrary. [See Note 100 below]

Note 100: Bernshaw, supra note 10 at 298.

This was said in answer to the accused's concern that the
device was not functioning properly due to the presence of
alcohol in the accused's mouth which may have distorted the
result.

¶ 86
In the case before us, Cst. Platford testified
that he was trained in the operation of the approved screening
device. [See Note 101 below] He also testified that the
approved screening device is calibrated so that it will
register a fail at .10 or greater [See Note 102 below] and
that Mr. Fox's fail reading led him to believe that Mr. Fox
was over .08. [See Note 103 below] While it is clear from the
evidence that Cst. Platford used this information for the
purposes of arresting Mr. Fox for driving over .08, none of
his evidence regarding his training, the functioning of the
roadside screening device or its proper operation was
questioned by defence counsel. Again, in a system where there
is no defence disclosure, it seems unfair now to say that it
was incumbent upon Crown counsel to prove all of those matters
in case the accused puts forward a defence of low alcohol
consumption.

Note 101: Transcript of trial proceedings, p. 18 lines 16-18

Note 102: Ibid. at p. 19, lines 22-23.

Note 103: Ibid. at p. 18, line 26.

E.

When is the evidence of the Roadside Test to be
Considered?

¶ 87
There is one other point which may lead to
confusion and that is this: when does the court consider the
evidence of the roadside screening device, i.e., can it be
used to reject the accused's evidence to the contrary as not
being believed? The danger, in considering the roadside test
result to assess the evidence to the contrary, is that the
court may move prematurely to a conclusion which may deny the
accused the benefit of a reasonable doubt. On this point, I
disagree with Gilbert and query the result in Dubois.

¶ 88
It may be, in part, one of the reasons why the
Courts of Appeal in Ontario and Québec have taken the view
that they have regarding the use of the approved screening
device. In both Gilbert and Dubois, the specific question
asked was whether such evidence could be used to reject the
accused's evidence to the contrary.

¶ 89
In Gilbert, the Court wrote:

4.

In the determination of whether to accept the
tendered evidence to the contrary, the trier of fact
should take into account all of the evidence,
including the breathalyzer results absent the
statutory presumption: see Lefaive, [1992] O.J. No.
2638. If after considering all of the evidence the
trier of fact rejects the tendered evidence to the
contrary, then it follows that there is no basis upon
which to conclude that the presumption should not be
applied. [See Note 104 below]

Note 104: Gilbert, supra note 57 at 280.

In Dubois, as well, the Québec Court of Appeal appears to have
considered the whole of the evidence to determine whether the
evidence tendered could constitute evidence to the contrary.
While neither case considered the use of the roadside test
result, these cases lay the foundation for Coutts and Bernard.

¶ 90
The approach in Gilbert and Dubois is contrary to
the approach in Gibson where Bayda C.J. set out the procedure
to be followed when assessing evidence to the contrary, and I
repeat:

... The process of determining whether an item or a
series of items of evidence is "evidence to the contrary"
is a process whereby the adjudicator places a value on
the evidence with a view to deciding whether there is
sufficient value or worth there for the fact-finder to
take the evidence into consideration should the time come
for him or her to balance and weigh the whole of the
evidence in order to make a finding of the fact in issue.
In short, the process is one of determining the probative
value of the evidence. The process is not one involving
demonstration or one of producing a finding of the fact
in issue. In short, it is not one of determining the
persuasive value of the evidence. That comes later (and
only if the presumption is rebutted). [See Note 105
below]

Note 105: Gibson, supra note 7 at 34-35.

It is also contrary to the approach in Kucher. [See Note 106
below]

Note 106: Kucher, note 54 at 126.

¶ 91
The problem in taking into account the roadside
result, to determine whether there is evidence to the
contrary, is this. The issue is the accuracy of the
breathalyzer or its operation. If the court considers the
roadside result at the first stage, it is difficult to see
where the line between evidence which is to be considered, and
that which is to be excluded, is to be drawn. When the court
considers the whole of the evidence absent the presumption of
accuracy, as I have indicated, the court is entitled to
consider the certificate. It would be peculiar to consider the
strength of the certificate's contents at the first stage
because that is what is being assessed to determine if there
is evidence to the contrary to rebut the presumption of
accuracy. The problem is circumvented by considering the
defence evidence in isolation and following the process in
Gibson and Kucher.

VII. CONCLUSION

¶ 92
I, accordingly, conclude that the trial judge did
not err when he held that given all of the evidence, including
the strength of the certificate representing the results taken
by a trained technician on an approved machine, and the "fail"
on the roadside screening device, that the accused's testimony
could not be believed and that no reasonable doubt existed. In
the result, I conclude that the summary conviction appeal
court judge erred in holding that the trial judge was not
entitled to consider the roadside screening device result and
in ordering a new trial.

¶ 93
Leave is granted. The appeal is allowed. The
judgment from the Court of Queen's Bench is set aside and that
of the Provincial Court restored.